Date: 09-19-2017

Case Style:

Case Number: 16-2264

Judge: Bobby R. Baldock

Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of New Mexico (Bernalillo County)

Plaintiff's Attorney: Sam Wolf

Defendant's Attorney: Eric Evan Laufgraben

Description: In this pay discrimination case, brought under the Equal Pay Act (EPA), 29 U.S.C.
§ 206(d), Cynthia A. Casalina appeals from a district court order that entered summary
judgment in favor of the Secretary of Energy. We exercise jurisdiction under 28 U.S.C.
§ 1291 and affirm.
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BACKGROUND
Because the parties are familiar with the factual contours of Casalina’s
employment, we provide only a short synopsis. In August 2008, Casalina began working
at the Los Alamos Field Office (LAFO) of the National Nuclear Security Administration
(NNSA), which is within the Department of Energy. She was hired as a safety and
occupational health manager and worked alongside Dean Decker, a general
engineer/physical scientist. They “both perform[ed] tasks related to safety and health of
equal complexity” and they “split work assignments 50/50.” Aplt. App. at 134.
In 2010, Casalina complained of pay disparity, prompting the LAFO to order a
desk audit of her position. Two classification specialists conducted the audit and reported
their findings in January 2011. They concluded that the positions involved shared
responsibilities, but required different educational backgrounds and professional
experiences:
[W]hile the two safety positions are similar in occupational safety and
health program management responsibilities, they are not identical. They
differ in both design and function of the positions, insofar as Mr. Decker’s
position was designed to function as a General Engineer/Physical Scientist,
and it does in fact function in that manner; and Ms. Casalina’s position was
designed as a safety and health program manager without the requirement
for professional knowledge of engineering or the physical sciences.
Aplee. Suppl. App., Vol. I at 82-83. Consequently, the classification specialists
concluded that Casalina’s position was properly classified as an “Occupational Safety
and Health Management Series at the GS-14 grade level.” Id. at 83.
In 2014, Casalina filed suit. She alleged that the Secretary violated the EPA by
paying her “approximately $35,000 less annually than [he] pa[id] Mr. Decker” for work
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“requir[ing] equal skill, effort and responsibility” and performed under similar
conditions. Aplt. App. at 16. “[T]he EPA prohibits a disparity in pay between men and
women ‘except where such payment is made pursuant to’” a prescribed affirmative
defense. Mickelson v. N.Y. Life Ins. Co., 460 F.3d 1304, 1312 (10th Cir. 2006) (quoting
29 U.S.C. § 206(d)(1)).
On the Secretary’s motion for summary judgment, the district court determined
that Casalina had raised a triable issue of fact as to whether the work she performed was
substantially equal to the work Decker performed. But despite that prima facie showing
of pay discrimination, Casalina could not, the district court said, overcome the
Secretary’s affirmative defense that the pay disparity resulted from a factor other than
sex. Specifically, the district court noted that Decker was paid more because of his
“greater total years of experience, his longer tenure as a federal governmental employee,
and [his] placement in the Excepted Service pay plan.” Id. at 101. Accordingly, the
district court granted the Secretary’s motion, prompting this appeal.
DISCUSSION
We review de novo a district court’s order granting summary judgment. Koch v.
City of Del City, 660 F.3d 1228, 1237 (10th Cir. 2011). Summary judgment is
appropriate if “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The Secretary does not contest on appeal that Casalina has met her summary
judgment burden of raising a prima facie EPA case by showing that “she was performing
work which was substantially equal to that of [Decker],” Riser v. QEP Energy, 776 F.3d
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1191, 1196 (10th Cir. 2015) (internal quotation marks omitted). Instead, the Secretary
raises the affirmative defense that the pay “differential [was] based on any other factor
other than sex.” Id. at 1198 (internal quotation marks omitted). To succeed, the
Secretary must clearly prove that the wage differential is in fact explained by the reasons
given so that no rational trier of fact could find to the contrary. Id. at 1198. Casalina
may “rebut[ ] the [Secretary’s] EPA defense[ ] by showing pretext.” Brownlee v. Gay &
Taylor, Inc., 861 F.2d 1222, 1224 (10th Cir. 1988). The record supports the Secretary’s
“other than sex” affirmative defense.
First, when Casalina was hired to work at LAFO, she had roughly sixteen years of
experience as an industrial hygienist for the federal government. Decker, on the other
hand, brought twenty-two years of that type of experience to LAFO when he was hired as
a general engineer/physical scientist. Moreover, Decker had a more extensive
educational background in the physical sciences. And by the time Casalina was hired in
2008, Decker had accumulated twenty-seven years of relevant experience compared to
her sixteen years. “[A]n employee’s prior experience is a factor ‘other than sex’ for
purposes of the Equal Pay Act.” Mickelson, 460 F.3d at 1312.
Second, Decker was hired under the Excepted Service Plan, whereas Casalina was
hired—five years after Decker—under a salary plan known as the Demonstration Project.
The former plan was implemented to recruit and retain “no more than 300” “highly
qualified scientific, engineering, and technical personnel . . . without discriminating based
on . . . sex.” Aplee. Suppl. App., Vol. I at 22, 23. The latter plan, which began shortly
before Casalina’s hiring, was implemented to “improve[ ] Federal [human resources]
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management” by using a “pay-for-performance system.” Id. at 71, 72. It is undisputed
that the two salary plans were designed to achieve different goals in the hiring and
retention of employees. Where a pay differential is not based on sex, but rather, is
“attributable to the existence of two distinct salary programs, neither of which had sex
discrimination as a purpose or as an effect,” the EPA is not violated. Equal Emp’t
Opportunity Comm’n v. Aetna Ins. Co., 616 F.2d 719, 726 (4th Cir. 1980) (footnote
omitted); see also Riser, 776 F.3d at 1198 (“A bona-fide, gender-neutral pay
classification system constitutes a ‘factor other than sex’ under the EPA.”).1
Third, Casalina’s predecessor, Dave Barber, had six more years of industrial
hygienist experience than Casalina when he was hired. But like Casalina, he was
ineligible for the Excepted Service Plan and was compensated at the GS-14 pay level.
Evidence that a male predecessor “received similar [compensation] treatment” indicates
that the EPA is not violated. Morgado v. Birmingham-Jefferson Cty. Civil Def. Corps,
706 F.2d 1184, 1189 (11th Cir. 1983).
Casalina maintains that the Secretary’s reliance on the “other than sex” affirmative
defense is pretextual because the Secretary took inconsistent positions in the district court
by claiming on the one hand that she and Decker did not perform substantially equal
1 Casalina argues that the Secretary cannot rely on the different salary
classification systems to support the pay differential with Decker because she
performed the same work as Decker. But a pay gap resulting from a salary
classification may properly “be explained by legitimate business-related differences
in work responsibilities and qualifications for the particular positions at issue.”
Riser, 776 F.3d at 1199 (internal quotation marks omitted). Thus, even though there
is a triable issue as to whether Decker and Casalina performed substantially equal
work, it is undisputed that Decker’s qualifications exceeded Casalina’s.
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work, and on the other hand that Decker’s superior qualifications justified the pay
differential. But Casalina did not raise this argument below, and she has not argued for
the application of plain-error review on appeal. The argument is, therefore, waived. See
Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128, 1130-31 (10th Cir. 2011).2
Next, Casalina derives pretext from the fact that “no number of years of service in
her position would ever let her achieve the same pay” as Decker. Aplt. Opening Br. at
20-21. While “the size of the pay differential” in an EPA case may be relevant to
“determining whether equal pay is being paid for equal work,” Sims-Fingers v. City of
Indianapolis, 493 F.3d 768, 771 (7th Cir. 2007), Casalina does not explain how
quantifying the pay differential between her and Decker illustrates pretext. Decker was
hired under a different salary plan and he possessed greater experience and education.
Casalina’s inability to match Decker’s pay level through years of service alone does not
reflect on the reason for the wage disparity with Decker. Cf. Kendrick v. Penske Transp.
Servs., Inc., 220 F.3d 1220, 1233 (10th Cir. 2000) (“Our role is to prevent unlawful hiring
practices, not to act as a super personnel department that second guesses employers’
business judgments.” (internal quotation marks omitted)).
Finally, Casalina asserts that pretext is shown by (1) LAFO’s retracted
determination prior to her current employment that she was qualified for a different
position as a general engineer/physical scientist; and (2) LAFO’s “remov[al] from the
2 In any event, the Secretary merely advanced alternate positions: either the
work was different (i.e., no prima facie case); or, if the work was substantially equal,
then the wage disparity was justified by a reason other than sex (i.e., an affirmative
defense). The Secretary’s use of alternate positions within the analytical framework
established for EPA claims does not suggest pretext.
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initial draft of the desk audit report” of “a suggestion[ ] . . . [to] re-classify her position to
a [higher] pay band,” Aplt. Opening Br. at 10. Casalina contends these facts show her
“educational qualifications” do not justify a pay differential with Decker. Id. at 23. But
these two facts neither indicate a comparable educational background with Decker nor
address Decker’s greater experience.
Because Casalina has failed to identify a triable issue of fact as to whether the
Secretary’s “other than sex” affirmative defense is merely a pretext for discrimination,
the Secretary was entitled to summary judgment.

Outcome: The district court’s judgment is affirmed.

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